State v. Howard

• Decision Date: 21 November 1893
• Citation: 24 S.W. 41,118 Mo. 127
• Parties: STATE v. HOWARD.
• Court: Missouri Supreme Court

24 S.W. 41

118 Mo. 127

STATE v. HOWARD.

Supreme Court of Missouri, Division No. 2.

November 21, 1893.

MURDER — NEW TRIAL — DISQUALIFICATIONS OF JURORS — MISCONDUCT OF COUNSEL — DEAF MUTES AS WITNESSES — APPEAL — OBJECTIONS WAIVED — PRESUMPTIONS — DISCRETION OF TRIAL COURT — WEIGHT OF EVIDENCE.

1. Objection for failure to furnish, to defendant a copy of the list of persons from whom jurors are to be drawn, at the time required by law, is waived by neglect of defendant to make objection, and save the point in the bill of exceptions.

2. The incompetency as a juror of a person on the jury list is no ground for a new trial, where defendant's objection to his competency on the voir dire examination is not preserved in the bill of exceptions.

3. Records of a county court showed that a person was adjudged insane, and sent to an asylum, in 1884, when his insanity was of less than a year's standing, but did not show his discharge. He returned to his county, was residing there, and was regarded by his neighbors as entirely sane, for several years before his selection as a juror on a criminal case, which was tried before a judge who noticed his conduct, and refused defendant's motion for a new trial because the juror was insane. Held, that, in the absence of evidence that his insanity was of a permanent type, the appellate court would presume his insanity to have been temporary, and that he was sane when selected as a juror.

4. On a motion for a new trial, the affidavit of defendant of prejudgment by jurors must be supported by the affidavit of his counsel.

5. The denial by the trial court of a motion for a new trial for prejudgment by jurors will not be disturbed, where there were affidavits pro and con as to such prejudgment.

6. Objection for misconduct of an attorney in assisting the prosecution, after having been appointed defendant's counsel at a previous term, cannot be raised by defendant, for the first time, on appeal.

7. A conviction will not be reversed because an attorney assisted counsel for the prosecution, after having been appointed counsel for defendant at a previous term, where such attorney neither appeared nor prepared papers in the cause, did not advise with defendant as to its merits, and was excused from further service as counsel for defendant.

8. On a murder trial, there was evidence that defendant inquired at several houses, on April 26th, the way to a store near where deceased lived. That he told people with whom he spent the night that he was seeking a relative, who lived in a direction different from deceased, but on the 27th inquired where deceased lived, and called on the latter that evening. That he then gave a name other than that he gave the people with whom he had stayed; said that he was a detective, and wanted deceased; forced deceased, at the point of a revolver, to leave with him that night. That, shortly after, cries were heard, and then two shots. That the body of deceased was found, on the 30th, about a mile from where the cries and shots were heard; he having been shot through the head, and through the body. That money which deceased carried had been taken. That there were signs of a struggle, and that a pocketbook and a poem in manuscript were found near by, which were identified as having been in defendant's possession a few days before. Defendant testified that the pocketbook and poem belonged to another man, and that he left on the 26th for a distant town, where he arrived the 27th; but his testimony as to the ownership and possession of the pocketbook and poem was contradicted, and the character of two of several witnesses who deposed that he was in the distant town on the 27th was shown to be bad. Held, that the evidence was sufficient to support a verdict of murder in the first degree.

9. On an issue as to the identity of a person charged with crime, the jury may find against him, though the witnesses swear merely as to their "belief" that he is the one who committed the crime.

10. A person deaf and dumb from birth is not presumed to be an idiot.

11. A trial court may elicit testimony from a deaf and dumb person either by signs, through the medium of an interpreter, or by writing, if the witness can write and read.

12. Where the evidence showed that defendant either was wholly innocent, or was guilty of murder in the first degree, it was not error to charge the jury that if they found him guilty they had nothing to do with assessing his punishment, which was a matter of law of the court, since the statutory penalty of the crime was death.

13. Improper conduct of an attorney for the state, in holding pictures of defendant in sight of some of the jury, is cured by the court sustaining an objection by defendant's counsel, and rebuking the attorney.

14. That an attorney went outside of the record in his closing address cannot be shown on appeal by affidavits, but the attention of the court should have been called to the improper conduct, and the proper remedy demanded, and, if not granted, an exception taken.

Appeal from circuit court, Laclede county; C. C. Bland, Judge.

Wilson Howard was convicted of murder in the first degree, and appeals. Affirmed.

Holt & Holt, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, Asst. Atty. Gen., for the State.

SHERWOOD, J.

Convicted of murder in the first degree by shooting Thomas McMichael, a deaf and dumb mute, to death, with a revolving pistol, the defendant has appealed to this court. Associated with him in the indictment, as accessories, were William Jennings, James Coldiron, A. L. Martin, Jr., and William Martin. The murder is charged to have occurred on the 27th of April, 1889, in Maries county, Mo.; and a change of venue, at defendant's instance, was awarded, to Laclede county. Various errors have been assigned in the briefs of counsel as grounds for a reversal of the judgment. These will be examined, and, when necessary, a sufficient portion of the evidence will be set forth in outline, showing the application of the rulings made.

1. And first, as to the list of those from whom the jurors were to be drawn not being furnished to the defendant 48 hours before the trial began. In the bill of exceptions, the examination of the 40 from which the trial jurors were to be drawn is not preserved, nor does it appear that defendant made any objection, or saved any exception, because of the failure to furnish him the list at the time required by law. This failure, if it be a fact, would be waived by neglecting to make timely objection, and to save the point in the bill of exceptions. State v. De Mosse, 98 Mo. 340, 11 S. W. Rep. 731; State v. Foster, (Mo. Sup.) 22 S. W. Rep. 468.

2. The motion for a new trial recites, and also the brief of counsel, that Jonathan Williams was on the list of 40, and was incompetent as a juror because at the time of the trial he had been "a resident of the county and state less than sixty days." The names of those who composed the 40 are not preserved, but if they were, and the fact was as is claimed, then, when the fact was brought out on the voir dire examination, timely objection should have been made to Williams' name being retained on the list; and, if such objection failed, then the matter should have been preserved in the bill of exceptions, the only repository of such objections and exceptions as occur during the progress of the trial. It is, indeed, stated in defendant's affidavit in support of the motion "that defendant's counsel challenged and objected to said juryman;" but, if they did, the objection, in order to its ultimate validity, should have been saved as aforesaid, since neither recitals in the motion, nor yet in the affidavit, are any evidence whatever of what occurred during the trial, and in the presence of the court, as we have time and again decided.

3. Other objections are to the competency of three of those who composed the trial panel, to wit, Thomas B. Cotton, John Gallion, and Ira B. Hurd.

(a) Thomas B. Cotton is alleged to have been insane at the time of the trial, and the affidavits of defendant and his counsel state that they were not aware of this fact at that time. The county court records of Laclede county also show that said Cotton was insane, and that his insanity was of less than one year's duration, and thereupon he was adjudged insane by that court on the 28th day of April, 1884, and sent to the asylum at Fulton for treatment; and, further, the records of that court do not show that Cotton had been discharged from the asylum. It is true that, after a person has been adjudged insane, such insanity is presumed to continue. State v. Lowe, 93 Mo. 547, 5 S. W. Rep. 889, and cases cited. In Lowe's Case, at the time the homicidal act occurred, — December 31, 1881, — the insanity was shown to have existed for some 19 years, resultant from being thrown from a mare in 1862; an insanity which had exhibited itself almost continuously ever since its inception. In the present instance, it does not appear whether the insanity was of a permanent, habitual, or chronic character, nor by what caused. The only statement in the record is that it "was of less than one year's duration." It may have been only of a temporary or spasmodic nature, and perhaps easily cured. At any rate, Cotton is found back in his county, and resides there for years, and is regarded by his neighbors as entirely same for several years past, as shown by the affidavits of those neighbors. Where the insanity has been only temporary, and the time of its exhibition remote, it may be rejected by the court as not warranting, in the absence of countervailing evidence, a presumption of continuance. 2 Bish. Crim. Proc. § 674. If no habitual insanity be shown at a certain period, — insanity which is "continuous and chronic," — the existence of such lunacy does not even shift the burden on the party asserting competency. 1 Whart. & S. Med. Jur. § 69. As there is nothing before us to show...